The Ontario Court of Appeal has upheld the Motion Judge’s decision in Arguev. Tay (Township) (2012 ONSC 4622 (CanLII)) which dismissed the plaintiff’s claim for failing to provide the notice required under s. 44(10) of the Municipal Act.
The plaintiff’s claim arose from a single motor vehicle accident on April 5, 2007. The plaintiff was driving on a gravel side-road when her vehicle struck a pothole, left the roadway and rolled over into a ditch. The Township’s volunteer fire department, of which her husband was a member, attended the scene of the accident along with the Ontario Provincial Police. The plaintiff’s husband took her to hospital. She was discharged the same day. Written notice of the claim was provided to the Township on March 26, 2009, almost two years following the accident.
The plaintiff argued that the Township had notice of the accident and/or potential claim on the day of the accident by virtue of the attendance of their Fire Department combined with their knowledge of the alleged dangerous condition of the road. The Fire Department’s records included a copy of the motor vehicle accident report which attributed the cause of the accident to “poor road conditions.” The Motion Judge did not accept this argument and noted that no legal authority was presented for the proposition that actual and/or constructive notice (including notice to a different municipal department) in any way pre- empted the requirement to give written notice to the Municipal Clerk. The Motion Judge also cited earlier authority where verbal notice had been found to be insufficient for the purposes of the Municipal Act.
The plaintiff also failed to convince the Motion Judge that the Township was not prejudiced by the failure to provide timely notice. As set out by the Motion Judge and confirmed by the Court of Appeal, where notice has not been provided within ten days, a municipality is presumed to have been prejudiced and the plaintiff bears the onus of establishing otherwise. The Motion Judge noted that a plaintiff might establish the absence of prejudice through:
- evidence that the municipality had taken steps to investigate in any event;
- timely photographs of the scene; and/or
- the identification of witnesses to the accident.
In the case, the condition of the road had changed materially between the accident and the date of notice, the plaintiff had no photographs showing the condition of the road at the material time, and the Township did not get the opportunity to interview those who had attended at the scene within a reasonable time period.
The Court of Appeal has solidified Arguev. Tay(Township) as a helpful decision in defending Ontario municipalities where the plaintiff has failed to provide written notice to the municipality within the prescribed 10 day period.